Director of Public Prosecutions v Webb &A nor

[2015] VCC 505

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00041
CR 15-00043

DIRECTOR OF PUBLIC PROSECUTIONS

v

KELLY WEBB
RHYS MEWBURN

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Geelong & Melbourne
DATE OF HEARING:	27 March 2015 & 21 April 2015
DATE OF SENTENCE:	21 April 2015
CASE MAY BE CITED AS:	DPP v Webb &A nor
MEDIUM NEUTRAL CITATION:	[2015] VCC 505

REASONS FOR SENTENCE
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Subject:         Robbery, Aggravated Burglary, Intentionally cause injury

Sentence:Mewburn: Community Corrections Order – 2 years duration – 100 hours community work – Supervision – Assessment and treatment for Alcohol and Drugs – Programs as directed

Webb: Total Effective Sentence 18 months Total Effective Sentence – non-parole period of 9 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Flynn	O.P.P
For Accused Webb	Mr E. Bourke-Lacey	James Dowsley & Associates
For Accused Mewburn	Mr N. Power	Melasecca Kelly & Zayler

HIS HONOUR:

1Rhys Mewburn and Kelly Webb, you have pleaded guilty to one count of aggravated burglary that occurred at Breakwater at Geelong on 9 October 2014, when you entered premises at 49 Tucker Street, when each of you knew that a person was present when you entered the premises with intention to assault that person.  The second charge on the same date is that you, Mr Mewburn, without lawful excuse assaulted Terry Cooke, and intentionally caused him injury; that is Count 2, and the third charge on the presentment is that each of you robbed Samantha Perovski, who was the resident at that premises, of certain money on that date. 

2In addition to that you, Mr Mewburn, have pleaded guilty to committing an indictable offence whilst on bail; the indictable offence being aggravated burglary, because you had been bailed the night before, and you entered a private residence at Tucker Street without lawful excuse on the same day contrary to the Summary Offences Act 1966 (Vic). So there are two additional summary offences against you, Mr Mewburn. Against you, Ms Webb, you were charged with unlawfully assaulting, with a weapon, Mr Terry Cooke on that day with a steak knife, and being unlawfully on the premises.

3The maximum penalty for each of the offences is set out in the Crown opening which was read in open Court and which I incorporate by reference.  The most serious offence is aggravated burglary because it carries a 25 year maximum penalty.

4The circumstances of the offences were set out in the Crown opening, which again was read in open Court and I will not repeat in any detail. Essentially you, Mr Mewburn, had been living at that address and for some unknown reason had been excluded from the premises. You, Ms Webb, were an associate of Mr Mewburn.  The previous evening there had been some event where you, Mr Mewburn, had been reported to the police for having a stolen motor vehicle or motorbike left at that premises.  That resulted in you being arrested and bailed. 

5The following morning, you went back to the premises with Ms Webb and it was at that point that after you, Ms Webb, were refused entry, you Mr Mewburn, broke into the back section of the premises and proceeded to assault Mr Cooke.  This constitutes the two offences of aggravated burglary and intentionally causing injury to Mr Cooke.  It was then that you, Ms Webb, proceeded to go up the stairs and rob the innocent occupant of the premises, Ms Perovski, of money, claiming that she owed money to Mr Mewburn.  You stole $115 from her.  In the course of you assaulting Mr Cooke, you claimed that he owed you money, Mr Mewburn. 

6Subsequently, after you had left the premises, the two of you returned to the premises and, at that point, you Ms Webb, went upstairs and assaulted Mr Cooke with a steak knife, or pulled a steak knife on him.  That is the summary account which you, Miss Webb, are charged with, and both of you are then charged with being unlawfully on premises, because you re-entered the premises later that morning.

7Police were called and you were then both arrested and each of you gave records of interview in which you, Ms Webb, stated that Mr Mewburn hit Terry Cooke and you tried to pull him off him, and Mr Mewburn did that because Terry Cooke owed him money and had his clothes.  You denied having pulled a knife on Mr Cooke and denied getting any money from Ms Perovski.  You, Mr Mewburn, say that you only took the property that was your own clothes.  You went to the property to get clothes and did not kick the door in; admitted that you punched Mr Cooke and that you used a brick to smash the door and you were not a drug or alcohol user. 

8Ms Perovski has filed a victim impact statement wherein she indicates that as a result of this offending, she has been experiencing feelings of depression, fear and stress.  She has become paranoid and she is having difficulty sleeping and she had to move her house.

Seriousness of the offending. 

9The offending here does not smack of premeditation.  It is not in dispute that you, Mr Mewburn, had some possessions in the house. At the same time there was this incident the previous evening. You claim you were owed money by one of the occupants, but it also appears that both of you were under the influence of drugs and you particularly, Ms Webb.  It was only after the two of you were refused entry that you forced your way in the back laundry, Mr Mewburn, and assaulted Mr Cooke, and then you, Ms Webb, proceeded to rob Ms Perovski, and then later on you, Ms Webb, assaulted Mr Cooke.

10Overall this offending took place over a short period and as I have indicated does not smack of premeditation.  On the contrary it smacks of stupidity on the part of both of you and it is consistent with the submissions of your Counsel that both of you were under the influence of drugs at the time.  Notwithstanding that this smacked of stupidity, this offending had a serious impact, as I have indicated, on Ms Perovski, who has filed a victim impact statement.  The impact on her must be considered in the overall sentencing synthesis.  Mr Cooke has not filed a victim impact statement, but, as the learned Crown prosecutor indicated in her address, he has suffered minor soft tissue injuries and small abrasions and bruising, and when he went to hospital he was given pain relief.  So Mr Cooke did not deserve to be belted up by you, Mr Mewburn, and even though he has not filed a victim impact statement, being assaulted in his own home would have had a significant impact on him and again I take that into account. 

Sentencing matters – Mr Mewburn.

11I turn now to the specific matters in relation to each of you in sentencing you.  Starting with you, Mr Mewburn. First, in relation to you, Mr Mewburn, the prosecution has filed a criminal record which indicates that the only time you have been before a Court was back in 2006 at the Colac Children's Court for some driving offences.  So effectively you come before the Court as a 27 year old man with no relevant prior convictions.  When you went to the Colac Children's Court, you were fined $300 for effectively driving without a licence and a couple of other charges.  Thus you do not have any prior conviction for violent offending or property offending and you have pleaded guilty to these offences.  I have taken into account your early plea of guilty as evidence of remorse and for its utilitarian value. 

12Turning to your personal circumstances, as I indicated, you are aged 27.  They are set out in detail in a report of Pamela Matthews, and also in a report of Kellie Foster, both psychologists.  In addition, there are a number of reports from a local paediatrician, Dr Jenner.  You have been under his care from early childhood until you turned 18.  He indicates that over the period that he treated you, virtually from age five, you have suffered learning difficulties, including ADHD, oppositional disorder and anxiety.  Notwithstanding these difficult childhood problems that required you to be prescribed with ritalin, he indicates in his final report, when you were aged 18, that you had matured and were progressing well and at that point, aged 18, had become a responsible member of the community and were in the workforce. 

13Your personal circumstances were that you came from a difficult upbringing where your parents had a turbulent relationship and your father was an alcoholic.  You were born in New South Wales but then moved to the Geelong area.  Your father was an electrician.  You struggled at school and only effectively reached Year 7 before leaving school.  You then went to Queensland where you were in employment.  You were a heavy consumer of alcohol between the ages of 15 and 23 although you sought to reduce it at that point when you were in the construction industry.  It appears that in 2011, as a result of an attempted suicide, you were placed on a disability pension.  You also began to use cannabis at age 18 and in recent times have developed a methylamphetamine addiction, although you indicate this has now ceased. 

14When you returned to Victoria after being in Queensland, you commenced using cannabis as well as excessive use of alcohol and it was in this context that this offending occurred.  On a personal level, you had a long-term relationship with a young woman and in February she gave birth to a child, but you have been denied access to this child. 

15In sentencing submissions, your Counsel has emphasised you pleaded guilty and are remorseful, and I accept that and, because you are a first offender, your plea of guilty indicated insight and indicates that you have favourable prospects of rehabilitation into the workforce.  Your Counsel submitted that a Community Corrections Order was an appropriate disposition.  The learned Crown prosecutor submitted that a term of imprisonment was required. 

16In this case, sentencing considerations must emphasise a disposition that encourages your rehabilitation.  As I indicated, your difficult background is set out in a report of Dr Jenner, who indicates that by 18 you had matured.  As I indicated also, you had been on a disability support pension for some years and you were assessed for a justice plan but were ineligible. 

17The report of Kellie Foster indicates that you are placed in the bottom four per cent of the population on an IQ basis.  In her report she says:

"He had difficulty generating alternative responses and strategies when he encountered a problem."

18Your academic ability is described as extremely low and your functioning is seen as to be at an early primary school level of ability.  She concludes:

"At a functional and adaptive level, Mr Mewburn has limited cognitive resources in problem solving, reasoning and weighing up consequences.  These issues present as potential contributors to offending and create barriers to behaviour change."

19The report of Pamela Matthews also supports a conclusion that despite your relative success in life until this offending, the developmental difficulties you have are still relevant.  She says:

"The writer doubts his adaptive ability to live independently successfully without some support and a better description would be that Mr Mewburn's cognitive and adaptive functioning falls in the mid to borderline range of cognitive ability".

20She goes on:

"In the writer's view, these described developmental conditions, particularly Mr Mewburn's cognitive and adaptive limitations, have been the most significant proponent of his offence behaviour in that his capacity to consider other alternatives to solve problems would have been extremely limited as would his capacity to resist social influences in the context of the events before the court."

21She goes on to say that:

"Mr Mewburn, it would appear, has experiences problems with alcohol, cannabis and stimulant dependence in the past.  However, his reported use levels of these substances involve frequency and length leading up to the matters before the court would suggest concerning levels of misuse but not necessarily dependency.  It is the writer's view, at the time of the matters before the court, Mr Mewburn was misusing methylamphetamine and alcohol and the use of these substances would have been an exacerbating factor in the developmental baseline difficulties he presents with cognitively, functionally, behaviourally and socially, but a lesser contributor than his baseline difficulties." 

22She indicates that you are emotionally vulnerable and that you would find prison difficult. 

23When you were arrested, you were in custody for 20 days and I have taken that into account. You were then released on bail and put on the CISP program, or the credit bail program.  In the final report, the writer indicates that you have progressed quite well during that period of her supervision of you and you had been referred for a GP mental health care plan and you had been undergoing counselling sessions with a mental health counsellor, Ms Powell, and you have been progressing extremely well.  She concludes:

"During this extensive period, the writer has observed Mr Mewburn develop, implement and currently maintain a treatment plan which appears to have supported Mr Mewburn's effort to improve his lifestyle and address his criminal offending behaviour concerns."

24You have the support of your employer who was in Court on the plea and you have been working for a couple of days a week as a tree trimmer and there is some reference in the reports to attending a TAFE course in that field.  He is also providing you with some accommodation. 

25Mr Mewburn, I see you as being at a fork in the road of your life.  You are effectively a first offender.  You have come from a deprived background that, according to Ms Matthews, still impacts on your ability to function in society.  You have responded positively to the CISP program.  A Magistrate has placed you on a Community Corrections Order for the offending the day before these events.  On one view, the two series of events could be seen as a course of conduct.  At the very least, your entry into the property was evidence of inflexibility and an inability to respond to the refusal of Mr Cooke to allow you to recover your possessions. 

26Since you have been released on remand under the CISP program, you have taken positive steps to address your underlying difficulties by way of referral to a psychologist or a counsellor.  Given that you have been crime-free prior to these events and your deprived upbringing, it is clearly not in the community interest that the efforts that you are currently undertaking at rehabilitation be set back by a custodial disposition, which in any event Ms Matthews said you would find more burdensome than the average person.  Notwithstanding the cases that emphasise the seriousness of the offence of aggravated burglary, the recent decision in Boulton v The Queen [2014] VSCA342 indicates that in certain circumstances a Community Corrections Order may be an appropriate disposition for this offence.  I regard a Community Corrections Order in these circumstances as meeting the requirements of punishment, denunciation, deterrence, both specific and general, and rehabilitation into the community. 

27Given that your intellectual functioning is at a very low level, rehabilitation in circumstances where you have a minimal criminal record must be given paramount weight, notwithstanding the serious nature of the offending here.  I propose to place you on a two-year Community Corrections Order concurrently with the one-year order that Magistrate McGarvie has placed you on, and to add an additional 100 hours of community work and to reimpose the same treatment and supervision conditions.  I will come back to that.

Sentencing matters – Ms Webb.

28Turning to you, Ms Webb, your Counsel in a comprehensive submission emphasised your deprived background.  You are two years older than Mr Mewburn, yet your criminal records dates back to when you were aged 14.  Your personal details are set out in a report of Dr Aaron Cunningham which I incorporate by reference.  You were born in the United Kingdom and arrived here when you were aged three and have an older sister.  Your parents separated when you were aged four and you did not continue a relationship with your father.  You describe your mother as your best mate.  Your mother re-partnered and you were abused at a young age by your stepfather who also abused your mother.  In those circumstances you were involved in the manslaughter of your stepfather and you were dealt with in the Supreme Court for that offence, when you were aged 15. 

29Since your involvement in the criminal justice system at that time, you have effectively continued in the criminal justice system with an extensive criminal record. It would take me many minutes to repeat the criminal record, but you have multiple prior appearances for stealing from shops.  You have prior convictions for the handling and receiving stolen goods, robbery, making a false document, trespass.  You were sentenced on 13 August 2012 for intentionally causing injury and affray as well as criminal damage.  You have been the subject of at least four Community Corrections Orders which you have breached.  You have been the subject of a number of suspended sentences which you have breached.  You have effectively recycled through the criminal justice system for at least the last eight years, which makes protection of the community an important sentencing consideration.  What I conclude from the criminal record is that it includes some offences of violence and numerous offences of theft.  It is clear that you have been the subject of a number of dispositions by way of Community-based Orders and suspended sentences which you have failed to respond to.

30In response to this abysmal criminal record, on your plea your Counsel submitted that a sentence of imprisonment was appropriate.  She did not ask for a non-custodial disposition and you have been in custody now for 194 days.  Your Counsel emphasised that you had not previously been given a sentence of imprisonment with a parole period.  I accept her submission that due to your failure to respond to dispositions in the past, a sentence that allows the Parole Board to manage your reintegration into the community is most appropriate. 

31In fixing sentence, your Counsel emphasised that your deprived upbringing remains salient in the disposition in this case.  Your Counsel submitted that this deprived upbringing includes sexual and physical abuse, leading to your early involvement in the criminal justice system.  The abuse to which you have been subject led to your involvement in the use of cannabis at age 18, the use of methylamphetamine at 15, as well as heroin, from the age of 17.  You are currently on a methadone program and you were using methylamphetamine at the time of this offence.

32Dr Cunningham, forensic psychologist, opines that you have been suffering from post-traumatic stress disorder that requires treatment.  He is of the opinion that you are of average intelligence and there is no indication of an intellectual impairment.  He includes:

"However, in my opinion, her drug abuse is an attempt to cope with her symptoms of post-traumatic stress disorder.  In my opinion her offence behaviour is linked to her drug abuse and association with drug peers." 

33Your Counsel relied on this opinion and on the High Court decision in Bugmy v The Queen (2013) 249 CLR 571 at [43]-[44] to submit that your deprived background remains salient. You require treatment for PTSD and I will have these reports sent to the authorities. Your Counsel submitted that your deprived background, that led to the PTSD, that led to your use of drugs, calls for some reduction in your moral culpability as your drug addiction arose in the context of this deprived background and abuse. I am prepared to accept the submission that there is to be some reduction in your moral culpability for this offending.

34As submitted, however, by the learned prosecutor, this then raises the other issue in sentencing, which is protection of the community, and that becomes salient, given the failure of you to respond to non-custodial lenient dispositions in the past, which makes sentencing you a very difficult exercise. 

Purposes of sentencing

35In sentencing both of you, the purposes for which a Court may impose a sentence of imprisonment are punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community.  In sentencing, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victim, if any.  I am required to balance the interests of the community in denouncing criminal conduct, with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society. 

36Now here, there are also issues of parity.  As submitted by Mr Power, given your prior convictions, Ms Webb, protection of the community is a much more salient consideration here than that for Mr Mewburn.  And, having carefully considered the submissions, I accept that different sentencing disposition are appropriate between the two of you, Mr Mewburn and you, Ms Webb. 

37In sentencing you, Ms Webb, your deprived background and need for psychological intervention to address PTSD, means that prison would bear more heavily on you and I have taken that into account.  In addition, you are now nearly eight months pregnant and this, plus your forthcoming confinement, and indeed your past remand, must have weighed more heavily on you and I have taken that past into account and the future into account in fixing a sentence.  I have also taken into account that you have family support, being the support of your mother and brother. You already have three children, but you are estranged from the father of those children and he is now looking after them while you are in custody. 

38It will ultimately be a matter for the Parole Board when you are released.  In sentencing each of you, I have decided that this is effectively a course of conduct and that therefore an aggregate sentence is appropriate in the case of both of you.  In your case, Ms Webb, I propose to impose an 18 months sentence of imprisonment and to set a minimum term of nine months.  As I said, when considering your prior convictions, in relation to your prospects of rehabilitation, they are problematic, given your failure to respond in the past. 

39On the other hand, Dr Cunningham has identified that you need post-traumatic stress disorder counselling, and you have not had a proper parole-type sentence that allows controlled re-entry into the community, and you do have the incentive that in due course you will have another young child to look after and try and get you out of the drug milieu and the criminal milieu that you have been in effectively the last 13 years. 

40Mr Mewburn, in your case, I am imposing a two year Community Corrections Order.  I have got to explain it do you.  It is an aggregate sentence.  It commences effectively immediately and you are required to attend the Geelong Community Corrections Offices, you know their address, within the next two business days.  Just as Magistrate McGarvie has advised you, you are on a two year good behaviour bond.  If you commit an offence in the next two years that breaches the order, you will be coming back here for re-sentence.  You are required to be under supervision of the Office of Corrections for that two year period and to receive visits.  You have got to tell them of your change of address and you cannot leave Victoria without getting permission.  You have got obey all lawful instructions.  I am adding an additional 100 hours community work to your current 150 hours that Magistrate McGarvie has placed you on over the two year period.  You have got to undergo assessment and treatment, including testing for drug abuse or dependency as directed by the regional manager, and also for alcohol dependency or abuse, and you are also to undergo any mental health assessment or treatment that may be directed by the regional manager and, as well as that, other courses that address your offending behaviour.  Also, Magistrate McGarvie recommended a positive life style program, so I have included that on this Community Corrections Order

41I have had this engrossed and I will ask your Counsel to explain it to you, Mr Power, and you will get Mr Mewburn to sign it. The prosecution has sought forfeiture orders and I am making those forfeiture orders in relation to both of you. In addition the prosecution have sought forensic sample orders and I am going to make those order. That requires you to provide a saliva sample to the authorities and they can use reasonable force to get that sample from you. There is also to be a compensation order to be made in favour of the victim of the robbery against each of you, for $115. 

42I am required to declare what I would have done had each of you not pleaded guilty.  In your case, Mr Mewburn, I would have imposed a two and half year Community-based Order had you not pleaded guilty.  In your case, Ms Webb, had you not pleaded guilty, I would have imposed a two year sentence of imprisonment with a 16 month non-parole period. 

43Are there any matters, Ms Flynn?

44MS FLYNN:  Yes, Your Honour, Your Honour needs to declare the presentence  detention in relation to Ms Webb of 194 days.

45HIS HONOUR:  I declare 194 days PSD for Ms Webb and I, as I have indicated to you, Mr Mewburn, in sentencing you, I have taken into account the 20 days that you have already served on remand.

46I will just stand down for a moment and I will ask Counsel, Mr Power, not you, Mr Bourke-Lacey, to explain this to Mr Mewburn and then we will re-assemble.

47(Short adjournment.)

48HIS HONOUR:  Mr Mewburn, I have signed this order and I do not want to see you back in front of a Court.  I have expressed surprise, given your deprived background, that you haven't been in a Court before, so you have done well in life.  You let yourself down on these events of October last year but with the assistance of the Office of Corrections, you can get yourself back on track.  So I do not want to see you in Court and I commend you for what you have done in your life so far, given the bad background you have had, but make sure you comply with everything the Office of Corrections does - you are up for 250 hours work in total, but all the people that see you say that you can respond.  So, good luck; you let yourself down, I do not want to see you back in Court, all right?

49As far as you, Ms Webb, are concerned; you have had a pretty tough, a very tough upbringing too.  You have had this lecture from many Magistrates; this is the first time you have been in this Court; you are about to have your fourth baby.  You are not unintelligent, but you have had this terrible background.  I do not want to see you back in a Court.  This is the first time at this level and you said to a psychologist you keep wanting to not get back into crime and recycling through the criminal justice system.  So maybe, you are hitting 30, you're getting too old for crime, maybe this new baby coming along, you can get your life on track with the help of you mother, under the supervision of a parole order, if you are granted parole, but when you are released in due course.  So I do not want to see you back in court either.

50I want to thank you, Ms Flynn for your prosecution of this appeal.

51MS FLYNN:  Thank you, Your Honour.

52HIS HONOUR:  I thank Counsel for their attendance on the plea and on the sentence and I stand down temporarily.

53MR POWER:  As Your Honour pleases.

54MR BOURKE-LACEY:  As Your Honour pleases.

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